Thursday, January 1, 2009

In mid-December, a 51-year-old man was freed from prison after a conviction for sexual assault of a child. In 2002, Ricardo Rachell (pictured in plaid shirt) was convicted by a jury for sexually assaulting an 8-year-old boy and sentenced to serve 40 years in prison. He supposedly had all the systemic safeguards to protect innocent citizens from being wrongfully convicted.

In this case, the term "innocent" means just that: Innocent. That term is used by me and other defense lawyers in trials and we define it to jurors as evidence that is "not proven." In Mr. Rachell’s case, he is actually innocent—as innocent as DNA can tell us.

Of course, he had a court-appointed defense lawyer; he had a judge who allegedly oversees the trial and rules without bias or prejudice; he had a jury of 12 people from the community in which he lived; and he had a prosecutor who took an oath to "see that justice is done." All failed Ricardo Rachell.

Back in 2002, there were a rash of sexual assaults of children in the neighborhood where Mr. Rachell lived. The modus operandi involved the assaulter riding a bicycle and approaching young boys with an offer to pay them if these boys would help him with some "chore"—such as delivering newspapers, removing trash, etc. The criminal would then lure these boys to a vacant house or some other spot and molest them. (Right: composite sketch of actual suspect.)

This was a terrible crime against our children and people were alarmed and frightened. Local politicians came to the neighborhood and spoke to the people; police officers were on the alert in the area; prosecutors were ready to prosecute.

Then a young child pointed the finger at Mr. Rachell, and within 24 hours his life turned into a living hell. He was arrested, thrown in jail, where he waited several months for his trial by a jury. DNA evidence was obtained from this child, given to the same officer who investigated Mr. Rachell’s case as well as other similar cases in the neighborhood, and the officer then delivered this critical evidence to Houston's infamous Crime Lab—where it sat . . . and sat . . . and sat. . . .

Mr. Rachell told his mother that he absolutely did not do this. He wrote letter after letter to his defense lawyer begging him to investigate other similar crimes in the neighborhood. He wrote letters to the judge; to the police; to the newspapers—all to no avail. We can only assume that he was simply saying "I did not commit this crime." Mr. Rachell was most likely unaware that DNA had been obtained from the complainant in his case—evidence that would ultimately exonerate him.

After Mr. Rachell’s arrest and while he was in jail, the attacks continued—still with a man on a bicycle . . . still with the request to the young boys to do some chores. The police officer who arrested Mr. Rachell was the same police officer who investigated other similar offenses while Mr. Rachell was cooling his heels in the county jail.

And did I mention that the complainant in Mr. Rachell’s case never said anything to anyone about a facial deformity when describing his attacker? Ten years before he was falsely accused of sexually assuaulting the 8-year-old boy, Mr. Rachell had been disfigured by a shotgun blast to the face after someone accused him of having been on their property.

Since his disfigurement, Mr. Rachell was known in the neighborhood as "Scary Man." His appearance likely contributed to the witch hunt against him. While the police were aware of the accused's facial abnormality, the complainant's failure to mention it did not seem to bother anyone.

It is incomprehensible to me that this situation could have occurred in my jurisdiction. How did this happen? Why would this police officer not say something like, "Hey, guys, do you think we should look at this case a bit closer?" What about the prosecutor? Surely he was aware of other similar offenses in the neighborhood occurring while Mr. Rachell was in jail.

But the worst failure was the defense lawyer. Why would he ignore the pleas of his innocent client? Do defense lawyers who take court-appointed cases hear too many clients proclaim their innocence—even in the face of obvious guilt—that they/we become inured to the truth when we hear it?

The news reports state that the defense lawyer claims to have had no knowledge of any DNA evidence. All the lawyer had to do was file a Discovery motion and in response to this motion, the prosecutor would have said he had the DNA evidence and he would have been required to produce the test results to the defense lawyer, or the prosecutor would have had to lie and say there was no such evidence. There is no indication if any of these things happened. Incredibly, the State never had the DNA evidence tested prior to trial. They had their witness.

As a result of this mass of errors, this innocent man spent nearly six years in prison. To the average person, it would be horrible to be in a prison, but can you imagine how horrible it would be to be locked up and be innocent? Worse, to have been wrongfully convicted of molesting a child. We all know how child molesters are treated in prison. Now imagine having a facial deformity on top of all that and you have some idea of what this man suffered while in confinement.

I want to leave Mr. Rachell’s case and jump to another real and recent case. I was hired to represent a young man about twenty-two years old. From his statements as well as from accounts given by his family and friends, my young client was a good dad who loved his baby girl more than anything in this world. He was with her as often as the mother allowed. He had recently finished a tumultuous relationship with a young woman who was the mother of this 3-year-old baby girl and a final order relating to visitation and child support had been signed and entered.

One recent Sunday, my client allowed his then-girlfriend (who knew the mother of the child) to return his daughter to her. It made the mother very angry that my client, the dad, did not personally return their child. Within 24 hours, this 3-year-old child had allegedly accused her daddy of touching her inappropriately.

Of course, Child Protective Services (CPS) gets involved and the police start investigating. My client hires an attorney. He gets arrested and goes to jail, all the while saying he did not do anything. He told me his story, and consequently, I made an appointment with the assistant district attorney who was assigned to handle his case so I could watch the video of the child.

It was apparent after viewing the video that the CPS interviewer of this 3-year-old child had manipulated the responses to her questions. There is no way I can explain how that is done—you would just have to see it. The child even named another perpetrator in her video—along with my client.

I discussed with the prosecutor the possibility of my client testifying in front of a Grand Jury. A Grand Jury is the filtering system for all felony indictments and at the state level is made up of 12 people who listen to the prosecutor discuss the cases. Defense lawyers are not allowed in the Grand Jury room. The Grand Jury then decides whether there is enough evidence to bind the case over for a jury trial. The Grand Jury either issues a "true bill"—meaning the case will be formally indicted and the defendant must defend himself in a courtroom—or a "no bill," meaning that the Grand Jury decided that there was not enough evidence.

In a few cases, the Grand Jury hears testimony from complainants, defendants, and witnesses, as it did in my client’s case. In the last 24 years, I have probably allowed three or four clients to testify in front of a Grand Jury. This is not a usual practice in defending clients, because defendants are Constitutionally protected against testifying against themselves and defense lawyers do not always have "innocent" clients.

My client testified in front of a Grand Jury, and he was "no billed." This means that his case will be dismissed. The system worked the way it was designed. My young male client dodged a very serious bullet. If he had been in a situation like Mr. Rachell's, he would have had to present his case to a 12-person jury—made up of people like you and me, citizens who abhor sexual assault of children and generally believe that if you are sitting in that "defendant’s chair" in the courtroom, there must be a reason. A conviction and a sentence of many years is more likely than not.

I compare these two cases to show that one was very lucky and the other was very unlucky. The circumstances surrounding Mr. Rachell’s case were even stronger for doubt or even innocence than they were in my client’s case.

Unfortunately, every person that Mr. Rachell looked to for assistance turned a deaf ear. One mistake piled on top of another. How many more of these cases are we going to hear about—years later? How many more people will have their lives torn apart with false allegations? Does the public understand how easy it is for a citizen to be indicted for a case of sexual assault based solely on the statement of one person? These cases are not unlike the Salem Witch Trials in the 1600s. All it takes is one person pointing a finger at you—then you may find yourself in Mr. Rachell’s living hell. Be aware.

At least Mr. Rachell is now free. And he's starting out the new year right. This week, he went for his first "free world" haircut in several years (pictured right). And a Houston plastic surgeon has volunteered his services to reconstruct Mr. Rachell's face. The doctor was contacted by U. S. Representative Al Green, whose district includes the neighborhood where Mr. Rachell lives with his stepfather. "The guy needs help," said Dr. Joseph Agris. "That is what we do. We will take care of this gentleman and there will be no charge."

Dr. Agris is no stranger to performing surgery out of charity. Four years ago, he offered his services to

Now Dr. Agris has extended a helping hand to Ricardo Rachell. In his first physician-patient consultation, Agris clutched Rachell's hand with his own, according to yesterday's Houston Chronicle. "I can tell you from my experience, it won't be a one-time operation," Agris said. "Don't look at trying to pay anything. We are going to get through this."

Soon Mr. Rachell will finally face the world as the man he really is, not as the Scary Man the State put away.

7 comments:

No doubt that the police and prosecutor would have had very serious concerns if they had taken the time to examine the case. Same MO continuing after the arrest, no victim mentions obvious deformity, etc.I just don't know if it was a matter of the 'assembly-line' approach to the cases or if it was a 'the goal is to win a conviction' attitude.It would seem strange that such a case would proceed, but the type of crime involved makes headlines and headlines bring pressure. An arrest and conviction relieves that pressure!

Re. the question whether "they still have the DNA evidence"? They had enough for testing and for the exoneration of Mr. Rachell. I do not know whether during this testing, it was all used. Most likely not.

And, yes, it is a shame that we depend on our elected officials to work "for us" and to protect us from the system faiing, as it did here, but this case shows us how important it is that we be ever vigilant. People who fail us should not be reelected - or simply "excused" because they made a mistake. It is not just a "mistake" to blatantly ignore the continued protestations of an accused citizen.

These stories are ALL to familiar and common here in lovely L.A.! If you look at the stats, there are over 60,000 people in our jail system here in California listed as sex offenders compared to 100's to around 1000 in all the other states in the union including NY! Does that seem right? That all sex offenders have chosen wonderful California to call home? We have a horrifyingly broken system here and I for one am trying to find someone that is willing to work on fixing it so that innocent people can get fair treatment rather than being coerced into taking deals because of scare tactics or not getting fair trials!! Interesting that one "Sex Crimes D.A." contributor to this site hasn't commented. She'll probably steer clear since she herself, goes dogedly after innocent men all the time, only looking for a conviction and her "record" - not caring about the truth! I pray for the day when our judicial system is actually about justice and truth and not some politician, D.A., police dept or judges reputation. Let's all hope for that in this New Year!! Innocent until PROVEN Guilty and having the right to a SPEEDY and FAIR Trial!